Criminal Procedure Law

New York State Law

Consolidated Laws of NY's CPL code

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S 330.10Disposition of defendant after verdict of acquittal.
1. Upon a verdict of complete acquittal, the court must immediately
discharge the defendant if he is in the custody of the sheriff, or, if
he is at liberty on bail, it must exonerate the bail.
2. Upon a verdict of not responsible by reason of mental disease or
defect, the provisions of section 330.20 of this chapter shall govern
all subsequent proceedings against the defendant.
S 330.20Procedure following verdict or plea of not responsible by
reason of mental disease or defect.
1. Definition of terms. As used in this section, the following terms
shall have the following meanings:
(a) "Commissioner" means the state commissioner of mental health or
the state commissioner of mental retardation and developmental
disability.
(b) "Secure facility" means a facility within the state office of
mental health or the state office of mental retardation and
developmental disabilities which is staffed with personnel adequately
trained in security methods and is so equipped as to minimize the risk
or danger of escapes, and which has been so specifically designated by
the commissioner.
(c) "Dangerous mental disorder" means: (i) that a defendant currently
suffers from a "mental illness" as that term is defined in subdivision
twenty of section 1.03 of the mental hygiene law, and (ii) that because
of such condition he currently constitutes a physical danger to himself
or others.
(d) "Mentally ill" means that a defendant currently suffers from a
mental illness for which care and treatment as a patient, in the
in-patient services of a psychiatric center under the jurisdiction of
the state office of mental health, is essential to such defendant's
welfare and that his judgment is so impaired that he is unable to
understand the need for such care and treatment; and, where a defendant
is mentally retarded, the term "mentally ill" shall also mean, for
purposes of this section, that the defendant is in need of care and
treatment as a resident in the in-patient services of a developmental
center or other residential facility for the mentally retarded and
developmentally disabled under the jurisdiction of the state office of
mental retardation and developmental disabilities.
(e) "Examination order" means an order directed to the commissioner
requiring that a defendant submit to a psychiatric examination to
determine whether the defendant has a dangerous mental disorder, or if
he does not have dangerous mental disorder, whether he is mentally ill.
(f) "Commitment order" or "recommitment order" means an order
committing a defendant to the custody of the commissioner for
confinement in a secure facility for care and treatment for six months
from the date of the order.
(g) "First retention order" means an order which is effective at the
expiration of the period prescribed in a commitment order for a
recommitment order, authorizing continued custody of a defendant by the
commissioner for a period not to exceed one year.
(h) "Second retention order" means an order which is effective at the
expiration of the period prescribed in a first retention order,
authorizing continued custody of a defendant by the commissioner for a
period not to exceed two years.
(i) "Subsequent retention order" means an order which is effective at
the expiration of the period prescribed in a second retention order or a
prior subsequent retention order authorizing continued custody of a
defendant by the commissioner for a period not to exceed two years.
(j) "Retention order" means a first retention order, a second
retention order or a subsequent retention order.
(k) "Furlough order" means an order directing the commissioner to
allow a defendant in confinement pursuant to a commitment order,
recommitment order or retention order to temporarily leave the facility
for a period not exceeding fourteen days, either with or without the
constant supervision of one or more employees of the facility.
(l) "Transfer order" means an order directing the commissioner to
transfer a defendant from a secure facility to a non-secure facility
under the jurisdiction of the commissioner or to any non-secure facility
designated by the commissioner.
(m) "Release order" means an order directing the commissioner to
terminate a defendant's in-patient status without terminating the
commissioner's responsibility for the defendant.
(n) "Discharge order" means an order terminating an order of
conditions or unconditionally discharging a defendant from supervision
under the provisions of this section.
(o) "Order of conditions" means an order directing a defendant to
comply with this prescribed treatment plan, or any other condition which
the court determines to be reasonably necessary or appropriate, and, in
addition, where a defendant is in custody of the commissioner, not to
leave the facility without authorization. In addition to such
conditions, when determined to be reasonably necessary or appropriate,
an order of conditions may be accompanied by a special order of
conditions set forth in a separate document requiring that the
defendant: (i) stay away from the home, school, business or place of
employment of the victim or victims, or of any witness designated by the
court, of such offense; or (ii) refrain from harassing, intimidating,
threatening or otherwise interfering with the victim or victims of the
offense and such members of the family or household of such victim or
victims as shall be specifically named by the court in such special
order. An order of conditions or special order of conditions shall be
valid for five years from the date of its issuance, except that, for
good cause shown, the court may extend the period for an additional five
years.
(p) "District attorney" means the office which prosecuted the criminal
action resulting in the verdict or plea of not responsible by reason of
mental disease or defect.
(q) "Qualified psychiatrist" means a physician who (i) is a diplomate
of the American board of psychiatry and neurology or is eligible to be
certified by that board; or (ii) is certified by the American
osteopathic board of neurology and psychiatry or is eligible to be
certified by that board.
(r) "Licensed psychologist" means a person who is registered as a
psychologist under article one hundred fifty-three of the education law.
(s) "Psychiatric examiner" means a qualified psychiatrist or a
licensed psychologist who has been designated by the commissioner to
examine a defendant pursuant to this section, and such designee need not
be an employee of the department of mental hygiene.
2. Examination order; psychiatric examiners. Upon entry of a verdict
of not responsible by reason of mental disease or defect, or upon the
acceptance of a plea of not responsible by reason of mental disease or
defect, the court must immediately issue an examination order. Upon
receipt of such order, the commissioner must designate two qualified
psychiatric examiners to conduct the examination to examine the
defendant. In conducting their examination, the psychiatric examiners
may employ any method which is accepted by the medical profession for
the examination of persons alleged to be suffering from a dangerous
mental disorder or to be mentally ill or retarded. The court may
authorize a psychiatrist or psychologist retained by a defendant to be
present at such examination. The clerk of the court must promptly
forward a copy of the examination order to the mental hygiene legal
service and such service may thereafter participate in all subsequent
proceedings under this section.
In all subsequent proceedings under this section, prior to the
issuance of a special order of conditions, the court shall consider
whether any order of protection had been issued prior to a verdict of
not responsible by reason of mental disease or defect in the case, or
prior to the acceptance of a plea of not responsible by reason of mental
disease or defect in the case.
2-a. Firearm, rifle or shotgun surrender order. Upon entry of a
verdict of not responsible by reason of mental disease or defect, or
upon the acceptance of a plea of not responsible by reason of mental
disease or defect, or upon a finding that the defendant is an
incapacitated person pursuant to article seven hundred thirty of this
chapter, the court shall revoke the defendant's firearm license, if any,
inquire of the defendant as to the existence and location of any
firearm, rifle or shotgun owned or possessed by such defendant and
direct the surrender of such firearm, rifle or shotgun pursuant to
subparagraph (f) of paragraph one of subdivision a of section 265.20 and
subdivision six of section 400.05 of the penal law.
3. Examination order; place of examination. Upon issuing an
examination order, the court must, except as otherwise provided in this
subdivision, direct that the defendant be committed to a secure facility
designated by the commissioner as the place for such psychiatric
examination. The sheriff must hold the defendant in custody pending such
designation by the commissioner, and when notified of the designation,
the sheriff must promptly deliver the defendant to such secure facility.
When the defendant is not in custody at the time of such verdict or
plea, because he was previously released on bail or on his own
recognizance, the court, in its discretion, may direct that such
examination be conducted on an out-patient basis, and at such time and
place as the commissioner shall designate. If, however, the commissioner
informs the court that confinement of the defendant is necessary for an
effective examination, the court must direct that the defendant be
confined in a facility designated by the commissioner until the
examination is completed.
4. Examination order, duration. Confinement in a secure facility
pursuant to an examination order shall be for a period not exceeding
thirty days, except that, upon application of the commissioner, the
court may authorize confinement for an additional period not exceeding
thirty days when a longer period is necessary to complete the
examination. If the initial hearing required by subdivision six of this
section has not commenced prior to the termination of such examination
period, the commissioner shall retain custody of the defendant in such
secure facility until custody is transferred to the sheriff in the
manner prescribed in subdivision six of this section. During the period
of such confinement, the physician in charge of the facility may
administer or cause to be administered to the defendant such emergency
psychiatric, medical or other therapeutic treatment as in his judgment
should be administered. If the court has directed that the examination
be conducted on an out-patient basis, the examination shall be completed
within thirty days after the defendant has first reported to the place
designated by the commissioner, except that, upon application of the
commissioner, the court may extend such period for a reasonable time if
a longer period is necessary to complete the examination.
5. Examination order; reports. After he has completed his examination
of the defendant, each psychiatric examiner must promptly prepare a
report of his findings and evaluation concerning the defendant's mental
condition, and submit such report to the commissioner. If the
psychiatric examiners differ in their opinion as to whether the
defendant is mentally ill or is suffering from a dangerous mental
disorder, the commissioner must designate another psychiatric examiner
to examine the defendant. Upon receipt of the examination reports, the
commissioner must submit them to the court that issued the examination
order. If the court is not satisfied with the findings of these
psychiatric examiners, the court may designate one or more additional
psychiatric examiners pursuant to subdivision fifteen of this section.
The court must furnish a copy of the reports to the district attorney,
counsel for the defendant and the mental hygiene legal service.
6. Initial hearing; commitment order. After the examination reports
are submitted, the court must, within ten days of the receipt of such
reports, conduct an initial hearing to determine the defendant's present
mental condition. If the defendant is in the custody of the commissioner
pursuant to an examination order, the court must direct the sheriff to
obtain custody of the defendant from the commissioner and to confine the
defendant pending further order of the court, except that the court may
direct the sheriff to confine the defendant in an institution located
near the place where the court sits if that institution has been
designated by the commissioner as suitable for the temporary and secure
detention of mentally disabled persons. At such initial hearing, the
district attorney must establish to the satisfaction of the court that
the defendant has a dangerous mental disorder or is mentally ill. If the
court finds that the defendant has a dangerous mental disorder, it must
issue a commitment order. If the court finds that the defendant does not
have a dangerous mental disorder but is mentally ill, the provisions of
subdivision seven of this section shall apply.
7. Initial hearing civil commitment and order of conditions. If, at
the conclusion of the initial hearing conducted pursuant to subdivision
six of this section, the court finds that the defendant is mentally ill
but does not have a dangerous mental disorder, the provisions of
articles nine or fifteen of the mental hygiene law shall apply at that
stage of the proceedings and at all subsequent proceedings. Having found
that the defendant is mentally ill, the court must issue an order of
conditions and an order committing the defendant to the custody of the
commissioner. The latter order shall be deemed an order made pursuant to
the mental hygiene law and not pursuant to this section, and further
retention, conditional release or discharge of such defendant shall be
in accordance with the provisions of the mental hygiene law. If, at the
conclusion of the initial hearing, the court finds that the defendant
does not have a dangerous mental disorder and is not mentally ill, the
court must discharge the defendant either unconditionally or subject to
an order of conditions.
7-a. Whenever the court issues a special order of conditions pursuant
to this section, the commissioner shall make reasonable efforts to
notify the victim or victims or the designated witness or witnesses that
a special order of conditions containing such provisions has been
issued, unless such victim or witness has requested that such notice
should not be provided.
8. First retention order. When a defendant is in the custody of the
commissioner pursuant to a commitment order, the commissioner must, at
least thirty days prior to the expiration of the period prescribed in
the order, apply to the court that issued the order, or to a superior
court in the county where the secure facility is located, for a first
retention order or a release order. The commissioner must give written
notice of the application to the district attorney, the defendant,
counsel for the defendant, and the mental hygiene legal service. Upon
receipt of such application, the court may, on its own motion, conduct a
hearing to determine whether the defendant has a dangerous mental
disorder, and it must conduct such hearing if a demand therefor is made
by the district attorney, the defendant, counsel for the defendant, or
the mental hygiene legal service within ten days from the date that
notice of the application was given to them. If such a hearing is held
on an application for retention, the commissioner must establish to the
satisfaction of the court that the defendant has a dangerous mental
disorder or is mentally ill. The district attorney shall be entitled to
appear and present evidence at such hearing. If such a hearing is held
on an application for release, the district attorney must establish to
the satisfaction of the court that the defendant has a dangerous mental
disorder or is mentally ill. If the court finds that the defendant has a
dangerous mental disorder it must issue a first retention order. If the
court finds that the defendant is mentally ill but does not have a
dangerous mental disorder, it must issue a first retention order and,
pursuant to subdivision eleven of this section, a transfer order and an
order of conditions. If the court finds that the defendant does not have
a dangerous mental disorder and is not mentally ill, it must issue a
release order and an order of conditions pursuant to subdivision twelve
of this section.
9. Second and subsequent retention orders. When a defendant is in the
custody of the commissioner pursuant to a first retention order, the
commissioner must, at least thirty days prior to the expiration of the
period prescribed in the order, apply to the court that issued the
order, or to a superior court in the county where the facility is
located, for a second retention order or a release order. The
commissioner must give written notice of the application to the district
attorney, the defendant, counsel for the defendant, and the mental
hygiene legal service. Upon receipt of such application, the court may,
on its own motion, conduct a hearing to determine whether the defendant
has a dangerous mental disorder, and it must conduct such hearing if a
demand therefor is made by the district attorney, the defendant, counsel
for the defendant, or the mental hygiene legal service within ten days
from the date that notice of the application was given to them. If such
a hearing is held on an application for retention, the commissioner must
establish to the satisfaction of the court that the defendant has a
dangerous mental disorder or is mentally ill. The district attorney
shall be entitled to appear and present evidence at such hearing. If
such a hearing is held on an application for release, the district
attorney must establish to the satisfaction of the court that the
defendant has a dangerous mental disorder or is mentally ill. If the
court finds that the defendant has a dangerous mental disorder it must
issue a second retention order. If the court finds that the defendant is
mentally ill but does not have a dangerous mental disorder, it must
issue a second retention order and, pursuant to subdivision eleven of
this section, a transfer order and an order of conditions. If the court
finds that the defendant does not have a dangerous mental disorder and
is not mentally ill, it must issue a release order and an order of
conditions pursuant to subdivision twelve of this section. When a
defendant is in the custody of the commissioner prior to the expiration
of the period prescribed in a second retention order, the procedures set
forth in this subdivision for the issuance of a second retention order
shall govern the application for and the issuance of any subsequent
retention order.
10. Furlough order. The commissioner may apply for a furlough order,
pursuant to this subdivision, when a defendant is in his custody
pursuant to a commitment order, recommitment order, or retention order
and the commissioner is of the view that, consistent with the public
safety and welfare of the community and the defendant, the clinical
condition of the defendant warrants a granting of the privileges
authorized by a furlough order. The application for a furlough order may
be made to the court that issued the commitment order, or to a superior
court in the county where the secure facility is located. The
commissioner must give ten days written notice to the district attorney,
the defendant, counsel for the defendant, and the mental hygiene legal
service. Upon receipt of such application, the court may, on its own
motion, conduct a hearing to determine whether the application should be
granted, and must conduct such hearing if a demand therefor is made by
the district attorney. If the court finds that the issuance of a
furlough order is consistent with the public safety and welfare of the
community and the defendant, and that the clinical condition of the
defendant warrants a granting of the privileges authorized by a furlough
order, the court must grant the application and issue a furlough order
containing any terms and conditions that the court deems necessary or
appropriate. If the defendant fails to return to the secure facility at
the time specified in the furlough order, then, for purposes of
subdivision nineteen of this section, he shall be deemed to have
escaped.
11. Transfer order and order of conditions. The commissioner may apply
for a transfer order, pursuant to this subdivision, when a defendant is
in his custody pursuant to a retention order or a recommitment order,
and the commissioner is of the view that the defendant does not have a
dangerous mental disorder or that, consistent with the public safety and
welfare of the community and the defendant, the clinical condition of
the defendant warrants his transfer from a secure facility to a
non-secure facility under the jurisdiction of the commissioner or to any
non-secure facility designated by the commissioner. The application for
a transfer order may be made to the court that issued the order under
which the defendant is then in custody, or to a superior court in the
county where the secure facility is located. The commissioner must give
ten days written notice to the district attorney, the defendant, counsel
for the defendant, and the mental hygiene legal service. Upon receipt of
such application, the court may, on its own motion, conduct a hearing to
determine whether the application should be granted, and must conduct
such hearing if the demand therefor is made by the district attorney. At
such hearing, the district attorney must establish to the satisfaction
of the court that the defendant has a dangerous mental disorder or that
the issuance of a transfer order is inconsistent with the public safety
and welfare of the community. The court must grant the application and
issue a transfer order if the court finds that the defendant does not
have a dangerous mental disorder, or if the court finds that the
issuance of a transfer order is consistent with the public safety and
welfare of the community and the defendant and that the clinical
condition of the defendant, warrants his transfer from a secure facility
to a non-secure facility. A court must also issue a transfer order when,
in connection with an application for a first retention order pursuant
to subdivision eight of this section or a second or subsequent retention
order pursuant to subdivision nine of this section, it finds that a
defendant is mentally ill but does not have a dangerous mental disorder.
Whenever a court issues a transfer order it must also issue an order of
conditions.
12. Release order and order of conditions. The commissioner may apply
for a release order, pursuant to this subdivision, when a defendant is
in his custody pursuant to a retention order or recommitment order, and
the commissioner is of the view that the defendant no longer has a
dangerous mental disorder and is no longer mentally ill. The application
for a release order may be made to the court that issued the order under
which the defendant is then in custody, or to a superior court in the
county where the facility is located. The application must contain a
description of the defendant's current mental condition, the past course
of treatment, a history of the defendant's conduct subsequent to his
commitment, a written service plan for continued treatment which shall
include the information specified in subdivision (g) of section 29.15 of
the mental hygiene law, and a detailed statement of the extent to which
supervision of the defendant after release is proposed. The commissioner
must give ten days written notice to the district attorney, the
defendant, counsel for the defendant, and the mental hygiene legal
service. Upon receipt of such application, the court must promptly
conduct a hearing to determine the defendant's present mental condition.
At such hearing, the district attorney must establish to the
satisfaction of the court that the defendant has a dangerous mental
disorder or is mentally ill. If the court finds that the defendant has a
dangerous mental disorder, it must deny the application for a release
order. If the court finds that the defendant does not have a dangerous
mental disorder but is mentally ill, it must issue a transfer order
pursuant to subdivision eleven of this section if the defendant is then
confined in a secure facility. If the court finds that the defendant
does not have a dangerous mental disorder and is not mentally ill, it
must grant the application and issue a release order. A court must also
issue a release order when, in connection with an application for a
first retention order pursuant to subdivision eight of this section or a
second or subsequent retention order pursuant to subdivision nine of
this section, it finds that the defendant does not have a dangerous
mental disorder and is not mentally ill. Whenever a court issues a
release order it must also issue an order of conditions. If the court
has previously issued a transfer order and an order of conditions, it
must issue a new order of conditions upon issuing a release order. The
order of conditions issued in conjunction with a release order shall
incorporate a written service plan prepared by a psychiatrist familiar
with the defendant's case history and approved by the court, and shall
contain any conditions that the court determines to be reasonably
necessary or appropriate. It shall be the responsibility of the
commissioner to determine that such defendant is receiving the services
specified in the written service plan and is complying with any
conditions specified in such plan and the order of conditions.
13. Discharge order. The commissioner may apply for a discharge order,
pursuant to this subdivision, when a defendant has been continuously on
an out-patient status for three years or more pursuant to a release
order, and the commissioner is of the view that the defendant no longer
has a dangerous mental disorder and is no longer mentally ill and that
the issuance of a discharge order is consistent with the public safety
and welfare of the community and the defendant. The application for a
discharge order may be made to the court that issued the release order,
or to a superior court in the county where the defendant is then
residing. The commissioner must give ten days written notice to the
district attorney, the defendant, counsel for the defendant, and the
mental hygiene legal service. Upon receipt of such application, the
court may, on its own motion, conduct a hearing to determine whether the
application should be granted, and must conduct such hearing if a demand
therefor is made by the district attorney. The court must grant the
application and issue a discharge order if the court finds that the
defendant has been continuously on an out-patient status for three years
or more, that he does not have a dangerous mental disorder and is not
mentally ill, and that the issuance of the discharge order is consistent
with the public safety and welfare of the community and the defendant.
14. Recommitment order. At any time during the period covered by an
order of conditions an application may be made by the commissioner or
the district attorney to the court that issued such order, or to a
superior court in the county where the defendant is then residing, for a
recommitment order when the applicant is of the view that the defendant
has a dangerous mental disorder. The applicant must give written notice
of the application to the defendant, counsel for the defendant, and the
mental hygiene legal service, and if the applicant is the commissioner
he must give such notice to the district attorney or if the applicant is
the district attorney he must give such notice to the commissioner. Upon
receipt of such application the court must order the defendant to appear
before it for a hearing to determine if the defendant has a dangerous
mental disorder. Such order may be in the form of a written notice,
specifying the time and place of appearance, served personally upon the
defendant, or mailed to his last known address, as the court may direct.
If the defendant fails to appear in court as directed, the court may
issue a warrant to an appropriate peace officer directing him to take
the defendant into custody and bring him before the court. In such
circumstance, the court may direct that the defendant be confined in an
appropriate institution located near the place where the court sits. The
court must conduct a hearing to determine whether the defendant has a
dangerous mental disorder. At such hearing, the applicant, whether he be
the commissioner or the district attorney must establish to the
satisfaction of the court that the defendant has a dangerous mental
disorder. If the applicant is the commissioner, the district attorney
shall be entitled to appear and present evidence at such hearing; if the
applicant is the district attorney, the commissioner shall be entitled
to appear and present evidence at such hearing. If the court finds that
the defendant has a dangerous mental disorder, it must issue a
recommitment order. When a defendant is in the custody of the
commissioner pursuant to a recommitment order, the procedures set forth
in subdivisions eight and nine of this section for the issuance of
retention orders shall govern the application for and the issuance of a
first retention order, a second retention order, and subsequent
retention orders.
15. Designation of psychiatric examiners. If, at any hearing conducted
under this section to determine the defendant's present mental
condition, the court is not satisfied with the findings of the
psychiatric examiners, the court may direct the commissioner to
designate one or more additional psychiatric examiners to conduct an
examination of the defendant and submit a report of their findings. In
addition, the court may on its own motion, or upon request of a party,
may designate one or more psychiatric examiners to examine the defendant
and submit a report of their findings. The district attorney may apply
to the court for an order directing that the defendant submit to an
examination by a psychiatric examiner designated by the district
attorney, and such psychiatric examiner may testify at the hearing.
16. Rehearing and review. Any defendant who is in the custody of the
commissioner pursuant to a commitment order, a retention order, or a
recommitment order, if dissatisfied with such order, may, within thirty
days after the making of such order, obtain a rehearing and review of
the proceedings and of such order in accordance with the provisions of
section 9.35 or 15.35 of the mental hygiene law.
17. Rights of defendants. Subject to the limitations and provisions of
this section, a defendant committed to the custody of the commissioner
pursuant to this section shall have the rights granted to patients under
the mental hygiene law.
18. Notwithstanding any other provision of law, no person confined by
reason of a commitment order, recommitment order or retention order to a
secure facility may be discharged or released unless the commissioner
shall deliver written notice, at least four days excluding Saturdays,
Sundays and holidays, in advance of such discharge or release to all of
the following:
(a) the district attorney.
(b) the police department having jurisdiction of the area to which the
defendant is to be discharged or released.
(c) any other person the court may designate.
The notices required by this subdivision shall be given by the
facility staff physician who was treating the defendant or, if
unavailable, by the defendant's treatment team leader, but if neither is
immediately available, notice must be given by some other member of the
clinical staff of the facility. Such notice must be given by any means
reasonably calculated to give prompt actual notice.
19. Escape from custody; notice requirements. If a defendant is in the
custody of the commissioner pursuant to an order issued under this
section, and such defendant escapes from custody, immediate notice of
such escape shall be given by the department facility staff to: (a) the
district attorney, (b) the superintendent of state police, (c) the
sheriff of the county where the escape occurred, (d) the police
department having jurisdiction of the area where the escape occurred,
(e) any person the facility staff believes to be in danger, and (f) any
law enforcement agency and any person the facility staff believes would
be able to apprise such endangered person that the defendant has escaped
from the facility. Such notice shall be given as soon as the facility
staff know that the defendant has escaped from the facility and shall
include such information as will adequately identify the defendant and
the person or persons believed to be in danger and the nature of the
danger. The notices required by this subdivision shall be given by the
facility staff physician who was treating the defendant or, if
unavailable, by the defendant's treatment team leader, but if neither is
immediately available, notice must be given by some other member of the
clinical staff of the facility. Such notice must be given by any means
reasonably calculated to give prompt actual notice. The defendant may be
apprehended, restrained, transported to, and returned to the facility
from which he escaped by any peace officer, and it shall be the duty of
the officer to assist any representative of the commissioner to take the
defendant into custody upon the request of such representative.
20. Required affidavit. No application may be made by the commissioner
under this section without an accompanying affidavit from at least one
psychiatric examiner supportive of relief requested in the application,
which affidavit shall be served on all parties entitled to receive the
notice of application. Such affidavit shall set forth the defendant's
clinical diagnosis, a detailed analysis of his or her mental condition
which caused the psychiatric examiner to formulate an opinion, and the
opinion of the psychiatric examiner with respect to the defendant. Any
application submitted without the required affidavit shall be dismissed
by the court.
21. Appeals. (a) A party to proceedings conducted in accordance with
the provisions of this section may take an appeal to an intermediate
appellate court by permission of the intermediate appellate court as
follows:
(i) the commissioner may appeal from any release order, retention
order, transfer order, discharge order, order of conditions, or
recommitment order, for which he has not applied;
(ii) a defendant, or the mental hygiene legal service on his or her
behalf, may appeal from any commitment order, retention order,
recommitment order, or, if the defendant has obtained a rehearing and
review of any such order pursuant to subdivision sixteen of this
section, from an order, not otherwise appealable as of right, issued in
accordance with the provisions of section 9.35 or 15.35 of the mental
hygiene law authorizing continued retention under the original order,
provided, however, that a defendant who takes an appeal from a
commitment order, retention order, or recommitment order may not
subsequently obtain a rehearing and review of such order pursuant to
subdivision sixteen of this section;
(iii) the district attorney may appeal from any release order,
transfer order, discharge order, order of conditions, furlough order, or
order denying an application for a recommitment order which he opposed.
(b) An aggrieved party may appeal from a final order of the
intermediate appellate court to the court of appeals by permission of
the intermediate appellate court granted before application to the court
of appeals, or by permission of the court of appeals upon refusal by the
intermediate appellate court or upon direct application.
(c) An appeal taken under this subdivision shall be deemed civil in
nature, and shall be governed by the laws and rules applicable to civil
appeals; provided, however, that a stay of the order appealed from must
be obtained in accordance with the provisions of paragraph (d) hereof.
(d) The court from or to which an appeal is taken may stay all
proceedings to enforce the order appealed from pending an appeal or
determination on a motion for permission to appeal, or may grant a
limited stay, except that only the court to which an appeal is taken may
vacate, limit, or modify a stay previously granted. If the order
appealed from is affirmed or modified, the stay shall continue for five
days after service upon the appellant of the order of affirmance or
modification with notice of its entry in the court to which the appeal
was taken. If a motion is made for permission to appeal from such an
order, before the expiration of the five days, the stay, or any other
stay granted pending determination of the motion for permission to
appeal, shall:
(i) if the motion is granted, continue until five days after the
appeal is determined; or
(ii) if the motion is denied, continue until five days after the
movant is served with the order of denial with notice of its entry.
22. Any special order of conditions issued pursuant to subparagraph
(i) or (ii) of paragraph (o) of subdivision one of this section shall
bear in a conspicuous manner the term "special order of conditions" and
a copy shall be filed by the clerk of the court with the sheriff's
office in the county in which anyone intended to be protected by such
special order resides, or, if anyone intended to be protected by such
special order resides within a city, with the police department of such
city. The absence of language specifying that the order is a "special
order of conditions" shall not affect the validity of such order. A copy
of such special order of conditions may from time to time be filed by
the clerk of the court with any other police department or sheriff's
office having jurisdiction of the residence, work place, or school of
anyone intended to be protected by such special order. A copy of such
special order may also be filed by anyone intended to be protected by
such provisions at the appropriate police department or sheriff's office
having jurisdiction. Any subsequent amendment or revocation of such
special order may be filed in the same manner as provided in this
subdivision. Such special order of conditions shall plainly state the
date that the order expires.
S 330.25Removal after verdict.
1. Where a defendant is a juvenile offender who does not stand
convicted of murder in the second degree, upon motion and with the
consent of the district attorney, the action may be removed to the
family court in the interests of justice pursuant to article seven
hundred twenty-five of this chapter notwithstanding the verdict.
2. If the district attorney consents to the motion for removal
pursuant to this section, he shall file a subscribed memorandum with the
court setting forth (1) a recommendation that the interests of justice
would best be served by removal of the action to the family court; and
(2) if the conviction is of an offense set forth in paragraph (b) of
subdivision one of section 210.43 of this chapter, specific factors, one
or more of which reasonably support the recommendation, showing, (i)
mitigating circumstances that bear directly upon the manner in which the
crime was committed, or (ii) where the defendant was not the sole
participant in the crime, that the defendant`s participation was
relatively minor although not so minor as to constitute a defense to
prosecution, or (iii) where the juvenile offender has no previous
adjudications of having committed a designated felony act, as defined in
subdivision eight of section 301.2 of the family court act, regardless
of the age of the offender at the time of commission of the act, that
the criminal act was not part of a pattern of criminal behavior and, in
view of the history of the offender, is not likely to be repeated.
3. If the court is of the opinion, based upon the specific factors
set forth in the district attorney`s memorandum, that the interests of
justice would best be served by removal of the action to the family
court, the verdict shall be set aside and a plea of guilty of a crime or
act for which the defendant is not criminally responsible may be entered
pursuant to subdivision three or four of section 220.10 of this chapter.
Upon accepting any such plea, the court must specify upon the record the
portion or portions of the district attorney`s statement the court is
relying upon as the basis of its opinion and that it believes the
interests of justice would best be served by removal of the proceeding
to the family court. Such plea shall then be deemed to be a juvenile
delinquency fact determination and the court upon entry thereof must
direct that the action be removed to the family court in accordance with
the provisions of article seven hundred twenty-five of this chapter.
S 330.30 Motion to set aside verdict; grounds for.
At any time after rendition of a verdict of guilty and before
sentence, the court may, upon motion of the defendant, set aside or
modify the verdict or any part thereof upon the following grounds:
1. Any ground appearing in the record which, if raised upon an appeal
from a prospective judgment of conviction, would require a reversal or
modification of the judgment as a matter of law by an appellate court.
2. That during the trial there occurred, out of the presence of the
court, improper conduct by a juror, or improper conduct by another
person in relation to a juror, which may have affected a substantial
right of the defendant and which was not known to the defendant prior to
the rendition of the verdict; or
3. That new evidence has been discovered since the trial which could
not have been produced by the defendant at the trial even with due
diligence on his part and which is of such character as to create a
probability that had such evidence been received at the trial the
verdict would have been more favorable to the defendant.
S 330.40Motion to set aside verdict; procedure.
1. A motion to set aside a verdict based upon a ground specified in
subdivision one of section 330.30 need not be in writing, but the people
must be given reasonable notice thereof and an opportunity to appear in
opposition thereto.
2. A motion to set aside a verdict based upon a ground specified in
subdivisions two and three of section 330.30 must be made and determined
as follows:
(a) The motion must be in writing and upon reasonable notice to the
people. The moving papers must contain sworn allegations, whether by
the defendant or by another person or persons, of the occurrence or
existence of all facts essential to support the motion. Such sworn
allegations may be based upon personal knowledge of the affiant or upon
information and belief, provided that in the latter event the affiant
must state the sources of such information and the grounds of such
belief;
(b) The people may file with the court, and in such case must serve a
copy thereof upon the defendant or his counsel, an answer denying or
admitting any or all of the allegations of the moving papers;
(c) After all papers of both parties have been filed, the court must
consider the same and, if the motion is determinable pursuant to
paragraphs (d) or (e), must or may, as therein provided, determine the
motion without holding a hearing to resolve questions of fact;
(d) The court must grant the motion if:
(i) The moving papers allege a ground constituting legal basis for
the motion; and
(ii) Such papers contain sworn allegations of all facts essential to
support such ground; and
(iii) All the essential facts are conceded by the people to be true.
(e) The court may deny the motion if:
(i) The moving papers do not allege any ground constituting legal
basis for the motion; or
(ii) The moving papers do not contain sworn allegations of all facts
essential to support the motion.
(f) If the court does not determine the motion pursuant to paragraphs
(d) or (e), it must conduct a hearing and make findings of fact
essential to the determination thereof;
(g) Upon such a hearing, the defendant has the burden of proving by a
preponderance of the evidence every fact essential to support the
motion.
S 330.50Motion to set aside verdict; order granting motion.
1. Upon setting aside or modifying a verdict or a part thereof upon a
ground specified in subdivision one of section 330.30, the court must
take the same action as the appropriate appellate court would be
required to take upon reversing or modifying a judgment upon the
particular ground in issue.
2. Upon setting aside a verdict upon a ground specified in
subdivision two of section 330.30, the court must order a new trial.
3. Upon setting aside a verdict upon a ground specified in
subdivision three of section 330.30, the court must, except as otherwise
provided in this subdivision, order a new trial. If a verdict is set
aside upon the ground that had the newly discovered evidence in question
been received at the trial the verdict probably would have been more
favorable to the defendant in that the conviction probably would have
been for a lesser offense than the one contained in the verdict, the
court may either (a) set aside such verdict or (b) with the consent of
the people modify such verdict by reducing it to one of conviction of
such lesser offense.
4. Upon a new trial resulting from an order setting aside a verdict,
the indictment is deemed to contain all the counts and to charge all the
offenses which it contained and charged at the time the previous trial
was commenced, regardless of whether any count was dismissed by the
court in the course of such trial, except those upon or of which the
defendant was acquitted or is deemed to have been acquitted.
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